Olena Sot­nyk: Ukraine’s lead­ers afraid of truly in­de­pen­dent ju­di­ciary

Kyiv Post Legal Quarterly - - Contents - By Brian Bon­ner bon­ner@kyivpost.com

With Pres­i­dent Petro Poroshenko block­ing the cre­ation of an anti-cor­rup­tion court and 80 per­cent of the new Supreme Court com­ing from the ranks of cor­rupt and dis­cred­ited judges, Olena Sot­nyk has scant hope for the jus­tice that Ukraini­ans crave.

That's why the 34-year-old Kyiv lawyer is fo­cus­ing her in­flu­ence, as an op­po­si­tion mem­ber of the 26-mem­ber Samopomich Party, on three pri­or­i­ties: Elec­tion re­form, build­ing a stronger mid­dle class of vot­ers and pub­lic TV. All three ini­tia­tives have a com­mon de­nom­i­na­tor: They are aimed at re­duc­ing the in­flu­ence of Ukraine's oli­garchs on the 2019 pres­i­den­tial and par­lia­men­tary elec­tions.

But in the short run, she ad­mit­ted in an in­ter­view on Sept. 18 with the Kyiv Post, the sit­u­a­tion looks bleak in terms of ad­vanc­ing the na­tion's ju­di­cial or law en­force­ment sys­tems past their Soviet lega­cies of cor­rup­tion and po­lit­i­cal sub­servience.

While leg­is­la­tion to cre­ate an in­de­pen­dent anti-cor­rup­tion court was adopted a year ago,

Poroshenko and other pow­er­ful in­ter­ests have blocked its cre­ation, she said.

The rea­son is sim­ple.

'They are afraid'

"Of course, they are afraid it can be in­de­pen­dent, qual­i­fied and rather trans­par­ent," Sot­nyk said. "We’ve been wait­ing for three years to see a re­sult. If there would be any op­por­tu­nity and ca­pa­bil­ity of Ukrainian courts to take de­ci­sions and is­sue ver­dicts, we would see at least one or two or three. There are no re­sults con­cern­ing this high-level cor­rup­tion. It means there is no ca­pac­ity and there is no will, and we are not go­ing to get any ver­dicts."

Poroshenko says that he “has no time” to wait for the cre­ation of an anti-cor­rup­tion court, not­ing that choos­ing a new Supreme Court — a process still un­der way — has taken 18 months. He also said that no other na­tions, ex­cept for a few poor African or Asian ones, have anti-cor­rup­tion courts. Those were Poroshenko's ar­gu­ments ear­lier in Septem­ber to mem­bers of the Euro­pean Busi­ness As­so­ci­a­tion and the Amer­i­can Cham­ber of Com­merce in Ukraine. He re­peated them at the open­ing of Vic­tor Pinchuk's 14th an­nual Yalta Euro­pean Strat­egy con­fer­ence on Sept. 15 in Kyiv.

But Poroshenko got a quick re­buke from John Kerry, the ex-u.s. se­na­tor and ex-sec­re­tary of state, who said that "in my na­tion, ev­ery court is an anti-cor­rup­tion court." The Euromaidan Rev­o­lu­tion that drove Pres­i­dent Vik­tor Yanukovych from power on Feb. 22, 2014, "can­not be be­trayed by busi­ness as usual which does not move on the is­sue of cor­rup­tion,” Kerry said. “I think it’s vi­tal for Ukraine to grab ahold of the mo­ment. It’s not too late, but the de­ci­sions made here will help us to be able to de­fend the fu­ture of Ukraine that peo­ple have staked their lives for." Sot­nyk agrees. But with Poroshenko un­will­ing to tol­er­ate an in­de­pen­dent ju­di­ciary, the pres­i­dent's re-elec­tion in 2019 will bring "no changes" in this area.

"It's the feel­ing we are not just go­ing into the wrong di­rec­tion, but that we are go­ing to stay alone," Sot­nyk said. "No­body is go­ing to support Ukraine when the head of the coun­try doesn't want to do any­thing and is ly­ing. Sorry, but it's a lie to say the anti-cor­rup­tion court is not go­ing to work if you’re not even try­ing. It's a mat­ter of pro­tect­ing his power or in­flu­ence."

Be­yond the prob­lems of a new 120-mem­ber Supreme Court that is not ex­pected to be much dif­fer­ent from the old, and the fail­ure to set up an in­de­pen­dent anti-cor­rup­tion court, Sot­nyk is wor­ried that anti-cor­rup­tion agen­cies es­tab­lished in re­cent years will stop work­ing al­to­gether.

She has in mind the Na­tional Anti-cor­rup­tion Bureau of Ukraine, the Spe­cial Anti-cor­rup­tion Pros­e­cu­tor's Of­fice and the Na­tional Agency for the Pre­ven­tion of Cor­rup­tion. Aside from those three agen­cies, Sot­nyk noted that the State In­ves­tiga­tive Bureau — cre­ated to take crim­i­nal in­ves­tiga­tive pow­ers away from the Gen­eral Pros­e­cu­tor's Of­fice — is not work­ing yet. Al­ready, NABU head Artem Syt­nyk has pub­licly said it's use­less to keep bring­ing cor­rup­tion cases to court when judges won't ac­cept them or hear them fairly.

Block­ing cor­rup­tion fight Un­der­min­ing the cor­rup­tion fight is the goal of the Pres­i­den­tial Ad­min­is­tra­tion and Ukraine's top oli­garchs, she said.

"It's one of the main goals of the oli­garchic groups and Bankova (Poroshenko’s of­fice)," she said. "In this case; there will be no­body who will re­sist or fight with high-level cor­rup­tion, so they can feel free."

Sot­nyk thinks the mi­nor­ity of clean judges on the new Supreme Court will not be able to re­sist the pres­sure of the ma­jor­ity of dis­trusted judges.

She lost faith in the se­lec­tion process af­ter re­sults of the writ­ten ex­am­i­na­tions were made se­cret. "This writ­ten test was closed, so you will never know who was good in this test and who failed," she said. "It's to­tally con­trolled from very be­gin­ning to end."

The best chance for the es­tab­lish­ment of a gen­uine anti-cor­rup­tion court, she said, rests with pres­sure from Western back­ers, a mi­nor­ity of re­form­ers like her­self in par­lia­ment and pub­lic pres­sure. That com­bi­na­tion has helped achieve other re­forms stalled by Poroshenko, in­clud­ing e-dec­la­ra­tions of pub­lic of­fi­cials' fi­nan­cial as­sets and a lus­tra­tion law to re­move Yanukovych-era and other cor­rupt of­fi­cials from pub­lic ser­vice.

But to win pub­lic pres­sure from Ukraini­ans, she said, politi­cians will have to do a bet­ter job of ex­plain­ing the con­nec­tion be­tween a suc­cess­ful anti-cor­rup­tion fight and the fi­nan­cial well-be­ing of peo­ple.

She also said she hopes the Western lend­ing in­sti­tu­tions, the In­ter­na­tional Mon­e­tary Fund and oth­ers, will in­sist on the anti-cor­rup­tion court.

If Poroshenko stops ob­struct­ing the process, she said, such a court could be up and run­ning in a mat­ter of months. She can think of at least a dozen qual­i­fied judges for such a court. "It is pos­si­ble within eight months, max­i­mum one year," she said. "We can put it in the 2018 bud­get now."

Lut­senko un­qual­i­fied Sot­nyk's dis­plea­sure with Ukraine's le­gal sys­tem ex­tends to Pros­e­cu­tor Gen­eral Yuriy Lut­senko, who com­mands 15,000 pros­e­cu­tors, and In­te­rior Min­is­ter Arsen Avakov, who over­sees 150,000 peo­ple in the Na­tional Guard and po­lice.

"He needs to fo­cus on the most se­ri­ouse ous c crimes es aga against stt the es­tate, state,” Sot­nyk said of Lut­senko.

In­stead, the pros­e­cu­tor gen­eral — who is not a lawyer or a pros­e­cu­tor by train­ing or ed­u­ca­tion — be­haves more like a politi­cian, she said. He was ap­pointed by Poroshenko on May 12, 2016 af­ter in­ter­na­tional pres­sure forced the pres­i­dent to fi­nally fire Vik­tor Shokin, Lut­senko's pre­de­ces­sor, who ob­structed the anti-cor­rup­tion drive.

How­ever, Lut­senko kept most of Shokin's peo­ple in place.

"He is try­ing to fo­cus on well-knownown fig­ures and well-known sur­names andnd to show re­sults in very fa­mous cases, s, like the case on Yanukovych," Sot­nykyk said. "He's post­ing on Face­book, where he's e's giv­ing the re­sults be­fore any judges, be­foree any court pro­ce­dures, be­fore any­thing, like he's the court of the last in­stance."

The pros­e­cu­tor gen­eral "should first of all be a lawyer," she said, one rea­son why "noth­ing has changed" in the work of pros­e­cu­tors since the Euromaidan Rev­o­lu­tion.

Avakov’s ob­sta­cles Many peo­ple think that the sec­ond most pow­er­ful per­son in the na­tion is In­te­rior Min­is­ter Arsen Avakov, who is po­lit­i­cally aligned with exPrime Min­is­ter Arseniy Yat­senyuk and the sec­ond largest fac­tion in par­lia­ment, the 81-mem­ber Peo­ple's Front.

Avakov is seek­ing to ex­pand the pow­ers and his over­sight over the Na­tional Guard, so that they have both mil­i­tary pow­ers and po­lice en­force­ment pow­ers. Sot­nyk op­poses such a move.

"We have only one re­form — pa­trol po­lice," Sot­nyk said. And even this change, in which salaries of pa­trol of­fi­cers were raised to roughly $500 a month and they were given new cars by for­eign donors, is not enough.

The rea­son, she said, is that crim­i­nal in­ves­ti­ga­tions are be­ing per­formed by the old po­lice guard, who are still un­der­paid and cor­rupt.

"Talk­ing about all the oth­ers, we saw no re­forms at all. Noth­ing. We have a huge prob­lem with the crim­i­nal po­lice, which is the main core of the de­part­ment," Sot­nyk said. “Many of them make less than $200 a month, which is, if not an in­vi­ta­tion for cor­rup­tion, then an ex­cuse not to do their jobs. They are not mo­ti­vated at all," she said. As a re­sult, no crim­i­nal in­ves­ti­ga­tions of any con­se­quence are car­ried out, she said.

Avakov also wants to re­main as one of the most pow­er­ful peo­ple in the na­tion.

"It's about con­trol, it's about in­flu­ence," she said of the bal­ance be­tween the forces of Avakov and Poroshenko, whose bloc in the 422-seat par­lia­ment is the most nu­mer­ous with 135 mem­bers. The pres­i­dent con­trols the army, the Se­cu­rity Ser­vice of Ukraine, pros­e­cu­tors, and judges, while Avakov con­trols the Na­tional Guard and po­lice.

She said that she sup­ports Fi­nance Min­is­ter Olek­sandr Danyliuk's pro­posal for an elite state Fi­nan­cial In­ves­tiga­tive Ser­vice to tackle big and com­pli­cated white col­lar crimes, such as bank fraud. But again, Sot­nyk said, many min­is­ters are com­pet­ing over who will con­trol the new agency.

Lookin­goo g a ahead,ead, s she said, she and like-minded mem­bers of par­lia­ment face a big pub­lic ed­u­ca­tion cam­paign. "We need to make this link­age o of anti-cor­rup­tion fighting at the highes high­est level with their pros­per­ity, wit with their lives each day," Sot­nyk sa said. "Oth­er­wise I am afraid P Poroshenko is not go­ing to pay a any po­lit­i­cal price."

Law­maker Olena Sot­nyk stands by the pre­sid­ium of the Verkhovna Rada dur­ing a par­lia­ment ses­sion on July 11 in Kyiv. (UNIAN)

Newspapers in English

Newspapers from Ukraine

© PressReader. All rights reserved.